| The incontestable clause originated from the common law system of the United Kingdom,was born in the United Kingdom,and further grew in the United States.It has gone through the long development process of "voluntary agreement of the insurer--the insurance industry practice--the compulsory provisions of the law",and has been adopted by the insurance laws of many countries.The Insurance Law amended in 2009 introduced this indefensible clause formally through legislation for the first time.However,due to the insufficiency and imperfection of legislation,the indefensible clause appears the symptom of "not acclimating to the soil" in the process of law application.Today,the clause in our country’s insurance practice and judicial practice of application has spawned many problems,unable to give full play to the functions that make the terms,therefore,this article will be the root of the trace cannot contradictory clause and the objective,the terms and conditions in the analysis of connotation,theoretical basis and value basis,analyzed the main issues of the terms and conditions applicable law in our country,in order to improve and perfect the the terms and conditions of the help.Although the incontestable clause and the waiver and estoppel rule belong to the insurance defense limitation system,there are many differences among them.The incontestable clause does not make too many requirements on the subjective state of the insurer.The core elements of the clause are only the limitation of the defensible period and the right to terminate the contract obtained by the insurer because the applicant fails to perform the obligation of telling the truth.The theoretical basis of incontestable clause is rooted in law and economics.From the perspective of law,the theoretical basis of the incontestable clause lies in the adherence to the principle of maximum good faith and the principle of fairness.From the perspective of economics,the incontestable clause is the game result of the change of dominant position between the two parties in the insurance transaction,which contains information asymmetry and the basic theory of defective market.Cannot contradictory clause,meanwhile,has a great value function,which helps to restrain the underwriter moral hazard,protect the interests of the applicant(the insured),maintaining the order of security market,improving the social public confidence and trust in the insurance company,for the healthy development of insurance industry and social progress has very important significance.At present,the disputes and differences about the indefensible clause in the insurance law in China mainly lie in the legal application of the clause,including the applicable types of insurance,the application in the case of fraudulent insurance,the relationship between the indefensible clause and the right of cancellation in civil law,and the application in the system of reeffect of personal insurance contract.Cannot contradictory clause based on the essence of the connotation,theoretical basis,in combination with our country’s insurance industry development present situation,the interests of all parties of insurance as a whole balance and cannot contradictory clause under the condition of value function,should certainly cannot contradictory clause in the application of the property insurance,insurance fraud cases,and at the same time to rule out the exercise of the right of revocation.In addition,in the system of response to effect of person insurance contract,ought to determine the starting point during which the clause can not protest by sub-circumstance.In this regard,the author puts forward the following suggestions:First,to clarify the legitimacy of the indefensible clause in property insurance;Secondly,the application of the insurer’s right of revocation under the circumstances of excluding fraudulent insurance;Thirdly,make clear the starting point of the defensible period in the contract of life insurance.The fourth,the setting can not defend the exception provision,including specifically:(1)insurance accident happens in the circumstances within the defensible period;(2)The effect of the contract is terminated due to the applicant’s failure to pay the insurance premium. |
